Turner v. Pierce et al

Filing 34

MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/6/16. (sar) Modified on 1/6/2016 (mdb).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ORIN TURNER,
Plaintiff,
v.
WARDEN PIERCE and SGT. DOME,
Defendants.

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) Civ. Action No. 14-276-GMS
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MEMORANDUM
I.

INTRODUCTION
The

plaintiff~

Orin Turner ("Turner"), who proceeds pro se and has been granted leave to

proceed without prepayment of fees, filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging
violations of his constitutional rights. Before the court is the motion for summary judgment of
the defendants Warden Pierce ("Pierce") and Sgt. Dome ("Dome") (together "the defendants"),
Turner's opposition thereto, and his motion to dismiss the motion for summary judgment as
untimely. 1 (D.I. 22, 24.) For the reasons that follow, the court will grant the defendants' motion
for summary judgment and will deny Turner's motion to dismiss.
II.

BACKGROUND
Retaliation claims against Pierce and Dome survived following screening of the amended

complaint, and all other claims and defendants were dismissed.

1

Turner's motion (D.I. 24) will be denied. On January 20, 2015, the court gave the
defendants until February 5, 2015, to answer or otherwise plead to the complaint. (See D.I. 20.)
The defendants' motion to dismiss, or in the alternative, for summary judgment was timely filed
on February 5, 2015. (See D.I. 22.)

A.

Allegations in the Amended Complaint (D.I. 11)

Turner alleges that in July 2013, he was moved to the D/East Building, a Medium-High
Security Unit ("MHU"). Upon his arrival, he encountered Dome who advised Turner that he
would not be there long because he did not want trouble in his building. According to Turner,
Imam Anas ("Imam Anas") placed him on a list to attend religion classes Monday through
Thursday, but Turner was only allowed to attend Friday prayers. Turner attended four classes
from July 2013 to September 24, 2013, not counting Friday or Saturday services. Turner verified
that he was on the list, but Dome told him that he was not. Turner spoke to corrections staff who
told him they would look into the matter. Turner wrote to Captain Burton ("Burton") and
complained that Dome would not allow him to attend religion classes. Burton told Turner he
would look into the matter. Dome then told Turner that, since he "liked to talk," Turner would
never go to class while he was the sergeant of the D/East Building. Turner then made a written
request for a transfer to another building or to the other side of D/East.
Turner spoke to Counselor Scott-Knight (Knight") and complained that he was treated
differently from other inmates and requested a transfer. After writing to numerous prison
officials, Turner was told by Knight that she would see him in March 2014 for his classification.
Turner accused Knight of some sort of relationship with Dome and believed that Knight was
helping or conspiring with Dome. That same morning after Turner spoke with Burton, he saw
Dome go into the counselor's office to speak to Knight. When Dome returned, Burton asked him
what was the problem and he replied that he did not like Turner and Turner responded in kind.
That afternoon while in the yard, Dome made disparaging comments to Turner. Turner was
called into the building and told by Dome to pack his bag, that he was "out of his building," and

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to go lock in, but Turner was never moved. On September 3, 2013, Turner filed a complaint for
harassment.
Turner filed a formal complaint on September 11, 2013, to Delaware Department of
Correction ("DOC") Commissioner Coupe ("Coupe") and complained of issues with roaches,
jobs, educations, programs, and he requested a transfer from the VCC. Turner also made a formal
complaint to Pierce regarding the unfair treatment he had received, told Pierce that he was at his
wits end with Dome, indicated that he had met with Burton regarding the problem, but that it was
getting worse.
On September 24, 2013, Turner was told to pack his bags, and he was moved to the
Security Housing Unit ("SHU"). Turner had no write-ups or major infractions and questioned the
move. C/O Torres ("Torres") told Turner the reason for the move was the four-page letter Turner
had written to the Commissioner's office. The next day, Turner wrote to counselor McMahon
("McMahon"), Pierce, and other prisoner officials and asked why he had been transferred to
SHU. McMahon advised Turner that the warden could house him wherever he chose. When he
received no answers, Turner submitted a grievance concerning his transfer to SHU. Next, he
wrote to Bureau of Prisons ("BOP") Bureau Chief Perry Phelps ("Phelps") and asked him to
check his status because he was now housed in SHU. Phelps responded and advised Turner that
he had a classification of fifteen points, medium housing. 2 Turner then wrote to Pierce on
October 27, 2013, included the memo from Phelps, and asked why he remained in SHU when he
had only fifteen points which warranted a medium-high security status. He received no answer.

2

According to McMahon, as of March 25, 2014, Turner had acquired 17 points, maximum

security.

3

On October 29, 2013, Turner was advised by Captain Rispoli ("Rispoli") that the warden
had transferred him to SHU because Turner had "to learn a lesson." Turner wrote to Deputy
Warden Parks ("Parks") and submitted another grievance for retaliation. Turner wrote to Coupe
on October 31, 2013, complained of the transfer to SHU, and asked him to look into the matter.
He again wrote to Coupe on November 14, 2013, and asked Coupe to transfer him from the VCC.
Coupe referred Turner to the warden.
Burton told Turner that the warden had transferred him to SHU because of the letter he
had written to Coupe when Turner was housed in D Building. Turner wrote to Major Brennan
("Brennan") and to Carroll Powell ("Powell") in support services and asked for help in obtaining
an interstate compact transfer and he spoke to Staff Lt. Reynolds ("Reynolds") who informed
Turner that the warden did not like him, that the warden had transferred Turner to SHU for the
letter he had written and said, "I told you to put your pen down."
Turner wrote to Major Carrothers ("Carrothers") on November 27, 2013, about the
transfer to SHU, retaliation, and right to due process. Turner sent a letter on January 12, 2014, to
the BOP complaining of his transfer to SHU, and he spoke to Reynolds on March 21, 2014, who
advised him that Pierce had placed Turner in SHU. On April 23, 2014, Reynolds told Turner that
he remained on the SHU list and that it would take two years before he was transferred from
SHU. Reynolds told Turner that he "should not have pissed Warden Pierce off so when he gives
the OK then you will leave." On June 2, 2014, Turner wrote to Phelps and asked why he
remained on the SHU list and why it would take two years to be transferred from SHU.
B.

Submissions by the Parties

During July 2013, an Imam conducted Arabic classes on Wednesday afternoons and, in
August 2013, an Imam conducted Arabic classes on Wednesday afternoons and Islamic classes

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were also held. (D.I. 23 ex. F.) Lists of inmates indicated those allowed to attend the classes. 3
Islamic classes were not held during the month of September 2013 due to other programming.
(Id)
On March 28, 2013, Turner was classified from maximum security to medium security.
(D.I. 23 ex. C,

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4.) The Institutional Based Classification Committee ("IBCC") approved the

classification on April 4, 2013, and Turner was transferred to that security level on May 21, 2013.
(Id.)
On April 13, 2013, Turner received a disciplinary report and was charged with
demonstrations, disorderly or threatening behavior, disrespect, and failing to obey an order. (D.I.
23 ex. A.) Turner was transferred to isolation on pre-hearing detention, and he was found guilty
of disorderly or threatening behavior, disrespect, and failing to obey an order. (Id at ex. B.) On
September 7, 2013, Turner received a disciplinary report and was charged with disorderly or
threatening behavior and failing to obey an order. (D.I. 23 ex. D.) Turner was found guilty of
disrespect and failing to obey an order. (Id at ex. E.)
On September 19, 2013, Turner sent a letter to Coupe and requested a transfer through the
Interstate Compact Agreement to another facility. (Id at ex. C,

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5.) The letter was forwarded to

Pierce for consideration. (Id.) Pierce states that the letter "gave [him] concern for Turner's
assigned security classification level. (Id) Pierce, Security, and Treatment Staff reviewed the
statements and felt that Turner presented a risk to the safe and secure operation of the facility.
(Id.) On September 24, 2013, Turner was administratively transferred from medium security to
maximum security at the personal direction of Pierce. (Id. at ex. C,

3

The court was not provided with any of the lists.

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4.) There is no requirement

under DOC polices and procedures that an inmate be charged with a criminal violation to transfer
the inmate administratively for security reasons. (Id. at ex. C, 14.)
On October 10, 2013, Turner wrote to Phelps seeking a review of grievances submitted
and his classification. (D.I. 27 ex. C, attachment 2.) Phelps forwarded the letter to Pierce for
review. (Id.) Turner submitted grievances regarding his classification on October 28, 2013 and
November 2, 2013. (D.I. 3 ex. E.)
On January 30, 2014, the IBCC classified Turner to maximum security, as recommended
by the Multi-Disciplinary Team (MDT") based upon DOC point-based risk assessment scoring
process. (D.I. 23 ex. C,

iJ 8.) The scoring process considered Turner's age, criminal history,

remaining time to be served, and his institutional conduct which included the April 13, 2013 and
September 7, 2013 disciplinary reports. (Id.)
In September 2014, the IBCC conducted another classification review and voted to reduce
Turner's security classification to medium security (although it was not unanimous), and agreed
there was insufficient justification to support Turner's request for an Interstate Compact transfer.
(D.I. 23, ex. C, iii! 10, 11; D.I. 27 ex. C.) Pierce exercised his authority and vetoed the
classification decision. (Id.) Turner remains classified to maximum security until his next
classification review. (Id.)
Pierce states that he vetoed the maximum security classification based upon his
professional consideration of the following variables: (1) the security threat Turner posed to the
staff and other VCC inmates and Pierce's responsibility to maintain security and order in the
VCC; (2) the vote to reduce Turner's security was not unanimous as one member felt that Turner
was not ready to transition to a lower security level; and (3) upon review of Turner's housing

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status since his last classification, Pierce found that Turner had failed to progress to a less
restrictive maximum environment and felt Turner needed additional time in maximum security so
prison officials could observe his behavior to determine the appropriateness of a lower security
environment. (Id. at ex. C,

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11.)

On October 17, 2014 and November 5, 2014, Turner submitted grievances regarding the
veto of the medium security classification. (D.I. 27 exs. A, C.) Turner was moved into a less
restrictive maximum security unit on December 24, 2014. (Id. at ex. C,

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12.) He is scheduled

for a classification review in late 2015. (Id.)
III.

ST AND ARD OF REVIEW

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the clams in question. See Celotex Corp. v. Catrett, 477 U.S.
317 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v.
Borough of West Chester, Pa., 891F.2d458, 460-461 (3d Cir. 1989). Pursuant to Rule 56(c)(l),

a non-moving party asserting that a fact is genuinely disputed must support such an assertion by:
"(A) citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations ... , admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing
party] do not establish the absence ... of a genuine dispute ... " Fed. R. Civ. P. 56(c)(l).
When determining whether a genuine issue of material fact exists, the court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d
180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonable
jury could return a verdict for the non-moving party. See Anderson, 477 U.S. at 247-249. See
Matsushita Elec. Indus. Co., 475 U.S. at 586-587 ("Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial."').
If the nonmoving party fails to make a sufficient showing on an essential element of its case with

respect to which it has the burden of proof~ the moving party is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. at 322.
The defendants move for summary judgment on the grounds that there is no genuine issue
of material fact and judgment is appropriate as a matter of law.

IV. DISCUSSION
The court liberally construed Turner's amended complaint as alleging that Pierce
retaliated and transferred him to SHU after he complained to the DOC Commissioner and that
Dome retaliated against him after he made complaints against him. Even when viewing the
evidence in the light most favorable to Turner, the nonmoving party, no reasonable jury could
find that the defendants violated Turner's constitutional rights.

8

In the retaliation context, the Third Circuit has stated that "[g]overnment actions, which
standing alone, do not violate the Constitution, may nonetheless be constitutional torts if
motivated in substantial part by a desire to punish an individual for exercise of a constitutional
right." Mdchell v. Horn, 318 F .3d 523, 530 (3d Cir. 2003); Allah v. Seiverling, 229 F .3d. 220,
224-25 (3d Cir. 2000); see also Williams v. Meyers, 165 F. App'x 201 (3d Cir. 2006)
(unpublished) (inmate alleged he was fired from his prison kitchen job in retaliation for filing
grievances against his supervisor, summary judgment for defendant); Mt. Healthy City School

Dist. Ed. of Educ. v. Doyle, 429 U.S. 274 (1977) (in the non-prisoner context, non-tenured
teacher could sue for retaliation alleging he was fired for exercising his free speech).
"Retaliation for the exercise of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990). To state a claim for retaliation, Turner must demonstrate:
(1) constitutionally protected conduct; (2) sufficiently adverse action was taken by prison

officials; and (3) a causal link between the exercise of his constitutional rights and the adverse
action taken against him. Mitchell, 318 F.3d at 530; see also Rauser v. Horn, 241F.3d330, 333
(3d Cir. 2001); Allah v. Seiverling, 229 F.3d at 225). The causation element requires a plaintiff to
prove either: ( 1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a
causal link. See Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007);

Krouse v. American Sterilizer Co., 126 F .3d 494, 503-04 (3d Cir. 1997). "[O]nce a prisoner
demonstrates that his exercise of a constitutional right was a substantial or motivating factor in
the challenged decision, the prison officials may still prevail by proving that they would have

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made the same decision absent the protected conduct for reasons reasonably related to a
legitimate penological interest." Id. at 334.
A.

Claim against Dome

The evidence of record does not support Turner's claim of retaliation by Dome. In his
opposition to the motion for summary judgment Turner states that he spoke to Imam Anas on
March 2, 2014 and was told that he was on the list for classes in the chapel. (D.I. 27 at 9.)
Turner argues that he was told that Dome was not allowing him to attend classes, and that Dome
took this action after he submitted grievances and wrote to Dome's supervisor. (Id.)
The amended complaint refers to alleged retaliatory conduct occurring in 2013, not 2014.
In addition, while Turner alleges that the alleged retaliatory conduct occurred after he submitted
grievances and wrote to Domes supervisor, he provided nothing to support his argument. Indeed,
while the court has no obligation to do so, it scoured the record for evidence of a grievance, letter,
or any type of constitutionally protected conducted by Turner prior to Dome's alleged retaliatory
acts and found none.
Given that the elements of a retaliation claim have not been met, the court concludes that
no reasonable jury could find for Turner on his claim against Dome. Therefore, the court will
grant the motion for summary judgment as to the retaliation claim against Dome.
B.

Claim against Pierce

The amended complaint alleges retaliation by Pierce when Turner was administratively
transferred to maximum security on September 24, 2013 .4 Construing the facts in the light most

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ln his opposition to the motion for summary judgment Turner refers to alleged retaliatory
conduct when Pierce vetoed the IBCC's medium security classification in September 2014. That
issue is not before the court. Regardless, the evidence of record does not demonstrate the
elements of retaliatory conduct with regard to the veto. Notably, there is no evidence of protected
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favorable to Turner, he engaged in protected conduct when he wrote to Coupe on September 19,
2013, and sought a transfer under the Interstate Compact, he subjected to an adverse action when
he was administratively transferred to maximum security, and causation exists given the short
proximity in time between the September 19, 2013 letter and the September 24, 2013 transfer.
Pierce, however, provided a reason for the action he took. Pierce states that the letter
gave him concern for Turner's assigned security classification level and, that after he, Security,
and Treatment Staff reviewed the statements, they felt that Turner presented a risk to the safe and
secure operation of the facility. Pierce's affidavit shows that he would have made the same
decision absent the protected conduct for reasons reasonably related to a legitimate penological
interest. In light of the foregoing, the court finds summary judgment is appropriate as to the
claim raised against Pierce.
V. CONCLUSION

For the above reasons, the court will grant the defendants' motion for summary judgment
and will deny the plaintiff's motion to dismiss.
An appropriate order will be issued.

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'2016
Wilmington, Delaware

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constitutional conduct or a causal link between the exercise of constitutional conduct and the
adverse action. In addition, Pierce demonstrated that he vetoed the recommendation for reasons
reasonably related to a legitimate penological interest
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